1. This dissenting opinion follows the Trial Chamber majority
decision of 28 January 2004, denying the Prosecution’s application to be
permitted to cross-examine a Prosecution witness.1

2. My position is that cross-examination of a witness by
the party calling the witness should be generally allowed. Besides the fact
that there is no Rule of the Tribunal which expressly prohibits a party from
cross-examining a witness it calls, I see no ensuing prejudice to the rights
of the accused to a fair trial by allowing such cross-examination.

3. Before elaborating on my reasons, I feel that it is important
to clarify my usage of the term "cross-examination" as I have found
that the definition itself may imply that it is not possible for the party calling
the witness to conduct such examination. For instance, Black’s Law Dictionary
defines cross-examination as "the examination of a witness upon a trial
or hearing, or upon taking a deposition, by the party opposed to the one who
produced him, upon his evidence given in chief, to test its truth, to further
develop it, or for other purposes. The examination of a witness by a party other
than the direct examiner…" However, my usage of the term is to focus on
the purpose of cross-examination, which is to test the credibility of statements
made by the witness.

4. The general principle that a party should not impeach
its own witness originated from British common law, which was then codified
into the Criminal Procedure Act s3 in 1865.2 The
various arguments supporting the general principle include: a party should not
be granted any means to discredit its witness; a party guarantees the trustworthiness
of the evidence it adduces; it would be unfair for the witness to be subjected
to cross-examination twice.3 However, probably the
most convincing reason of this general principle is that such cross-examination
may lead the jury, the fact finders in a common law system, to confusion. This
may occur when the jury negates the entire testimony of the witness without
being able to distinguish between credible and incredible statements in their
search for the facts because the witness has been discredited by the party calling
the witness.

5. However, none of the above reasons is very convincing,4
and particularly so in a tribunal where the judges are the fact finders. It
should also be noted that, even under the common law tradition, a party is allowed
to cross-examine its own witness under certain circumstances.5
Moreover, it is of interest to note that the United States, another legal tradition
following the common law system, has generally abrogated the principle. Rule
607 of Federal Rule of Evidence of the U.S. stipulates that "the credibility
of a witness may be attacked by any party, including the party calling the witness."6

6. With respect to the Tribunal, justice is meted by professional
judges, not by the jury. The professional judges have the competence to assess
the truthfulness and to accord the proper weight to a witness’ evidence. In
addition, the judges have the provisions of Rule 90 (F) to exercise control
over the mode and order of interrogating witnesses and presenting evidence.7

7. Moreover, I do not see the purposes and practical benefits
of strictly classifying witnesses into three categories - court witness, prosecution
witness and defense witness - as in the common law system. Rather I believe
that there is merit in viewing all witnesses as means of ascertaining the truth,
allowing the tool of cross-examination as a method to do so. In this sense,
I strongly endorse the civil law system, which views all witnesses as the court’s
witnesses in the ascertainment of the truth.

Done in both English and French, the English text being authoritative.

_________
O-Gon Kwon
Judge

Dated this twenty-ninth day of April 2004
At The Hague
The Netherlands

A party producing a witness shall not be
allowed to impeach his credit by general evidence of bad character; but he
may, in case the witness shall, in the opinion of the judge, prove that he
has made at other times a statement inconsistent with his present testimony;
but before such last-mentioned proof can be given, the circumstances of the
supposed statement, sufficient to designate the particular occasion, must
be mentioned to the witness, and he must be asked whether or not he has made
such statement.

3. Colin Tapper, CROSS AND TAPPER ON EVIDENCE (London 1995),
311.
4. Ibid.
5. For example, if a witness proves to be adverse or hostile to the party calling
him, the party may cross-examine him regarding a previous inconsistent statement.
6. In addition, the majority of states in the U.S. has abandoned the general
rule against impeachment of a party’s own witness as well. See, e.g.,
Charles W. Ehrhardt and Stephanie J. Young, Using Leading Questions during
Direct Examination, Florida State University Law Review (Fall 1995), 401-402.
However, leading a witness is generally a separate issue from cross-examining
one’s own witness, and Rule 611(c) of Federal Rule of Evidence, for example,
controls that issue.
7. Rule 90 (F) provides "The Trial Chamber shall exercise control over
the mode and order of interrogating witnesses and presenting evidence so as
to

i) make the interrogation and presentation effective for
the ascertainment of the truth; and
ii) avoid needless consumption of time."